trary to the truth as ascertained by the verdict. The circuit court was positive in its refusal to usurp the province of the jury in reference to the vital question of fact in the case; and in this it is sustained with commendation by the appellate court.

The practice in the federal courts goes farther than in most of the state courts, in directing juries as to their conclusions upon undisputed facts, and in directing what their verdicts shall be. Parks v. Ross, 11 How. 362; Improvement Co. v. Munson, 14 Wall. 448; Pleasants v. Fant, 22 Wall. 116. But the peculiar function of the jury can not be discharged by the court in jury cases. "The line which separates the two provinces must not be overlooked by the court." Nudd v. Burrows, 91 U. S. 439, 3 Cent. L. J. 668. The central idea of the principal case is found in the sentence which we have taken verbatim as the first headnote. J. O. P.

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1. TRESPASS-CONTINUING WRONG-DOER Where enters upon the land of B and digs a ditch thereon, there is a direct invasion of the rights of B. A completed tresand the cause of action for all injuries resulting therepass, from commences to run at the time of the trespass. And the fact that A does not re-enter B's land and fill up the ditch, does not make him a continuous wrong-doer and liable to repeated actions as long as the ditch remains unfilled. A party may be responsible as a continuing wrong. doer, as for permitting a nuisance to remain upon his lands; but no one can be charged as such continuing wrong-doer, who has not the right and is not under the duty of terminating that which causes the injury.

2. UNLAWFUL ENTRY-RE-ENTRY.-A party who enters another's lands and commits a trespass by digging a ditch, does not thereby acquire a right to re-enter and fill up the ditch. He would be liable as a trespasser if he did so reenter.

3. UNFORESEEN INJURY-NEW CAUSE.-Though from a completed wrong there afterwards results new and unforeseen injury, there does not arise a new cause of action; and if a recovery has been had for the wrong prior to the occurrence of the new injury, no recovery can be had for such injury.

4. DUTY OF INJURED PARTY.-After a wrong has been committed, it is the duty of the injured party to make reasonable efforts to prevent an increase or extension of the injury; and if he fails to do so, he can not recover for such increased injury.

J. P. Usher and C. E. Brotherton, for plaintiff in error; McClure & Humphreys and Greene & Hessin, for defendant in error.

BREWER, J., delivered the opinion of the court:

Mihlman was the owner of a tract of land in Riley County. In December, 1866, he deeded the right of way through it to the company, plaintiff in error. Prior to 1868, the road was constructed over this right of way. It is not claimed that the road was not built on the track deeded, or that it was unskilfully built. The road crossed, at right angles, a ravine, which seems to have drained quite an extent of territory, and through which ran, after a heavy rain, a large volume of surfacewater. It does not appear to have been, technically, a water-course, or that anything but surface-water ran through it. At, or near, this ravine the company built two culverts. Leading to and from these culverts, it, according to Mihlman's testimony, dug two or three ditches, partly on the right of way and partly on Mihl

man's land. In 1872 and 1873, from these ditches, or in consequence of the culverts being unable to carry off all the surface-water, the land of Mihlman was flooded and his crops destroyed; and for this damage he brought this action. It does not appear that the company entered upon Mihlman's land, or did any work thereon, at any time within five years prior to the commencement of this action.

In reference to this, counsel for defendant in error say: "The gravamen of the charge contained in the plaintiff's petition is, that the defendant company, having, by unlawfully digging ditches on the plaintiff's land, created, continued to maintain a nuisance thereon, from which the plaintiff, in the years 1872 and 1873, suffered the damages complained of." And, again: “We do not charge that the company did not build its railroad on its own land, nor that it unskilfully built its road; and, since we make no charge of that kind, nor make any claim predicated upon such a state of facts, it is irrelevant to state in the answer, conversely, that the road was built skilfully and on the company's own land. If the company had confined its operations to its own land, no harm would have resulted, and it would not now be called upon to respond in damages for the continuance of a nuisance to the land of Mihlman." And, still again: "The question is rather, had the company the right to enter and occupy the lands of Mihlman for the purpose of digging and maintaining ditches to drain the waters from their railroad at that point, without Mihlman's consent, and is it not answerable for the damages occasioned by such acts?" It is evident, from these quotations, that the operations on Mihlman's land, and not those on the right of way, are considered the basis of the cause of action.

The first matter to which our attention is called, and which we shall notice, is that of the statute of limitations. Actions of trespass upon real property are barred in two years. Gen. St. 633, § 18, cl. 3. If the cause of action dates from the time the defendant entered upon the plaintiff's land and dug the ditches, and was simply for the trespass, it was barred; if from the time the injury to Mihlman's crops occurred, it would probably not be. So far as the company had acted, its action was finished when it had dug the ditches (we are now considering the question with reference solely to what it did off from its own land and upon that of Mihlman). It had invaded Mihlman's rights; it had committed a trespass on his lands; it was then responsible in an action for the injury it had done by that trespass. Such action might have been brought immediately, and in such action could have been recovered all damages done to Mihlman by the trespass, and which might have included the cost of restoring the ground to the condition it was in before the digging of the ditches.

What new act has the company since done? What wrong has it done to Mihlman's property? Nothing; its hands have been still; it has made no new invasion of his rights. Suppose an action had been brought, and damages recovered for the trespass, immediately after it occurred: What new act of the company could now be alleged as the basis of recovery? True, the trespass has now resulted in greater loss than was then foreseen or estimated in assessment of damages; but an increase in the damages resulting adds no new cause of action. A commits an assault on B; action is brought, and damages recovered. That ends the matter; and, though B's sufferings are prolonged, and his injuries prove to be permanent, and of a far more serious character than was thought at the time of the recovery of damages, there can be no new action and no further recovery. Fetter v. Beale, 1 Salk. 11. "We think this action is for an injury to a right; and, consequently, there was a complete cause of action

when the wrong was done, and not a new cause of action when damage was sustained by reason of the original wrong." Baron Parke, in Nicklin v. Williams, 10 Ex. 259. See, also, Northrop v. Hill, 57 N. Y. 351. So, for the trespass, the cause of action is complete at the time, and an increase in the resulting damages gives no new cause of action.

There are cases, it is true, in which the cause of action is based upon the actual occurrence of damage, and dates therefrom, and not upon or from the prior act which resulted in the damage; but these are all cases in which the prior act is itself lawful, and furnishes no cause of action, or where it is considered as a continuing act. As, where one excavates on his own land, and thereby withdraws the lateral support to his neighbor's soil and buildings, the act is itself lawful, and only becomes the basis of a cause of action for damages when it actually results in injury; and the cause of action dates, not from the time of the excavation, but from the time of the subsidence. Bonomi v. Backhouse, 96 En. Com. L. 53. Here no trespass is committed; the party is simply using his own property, and using it lawfully, and it is only when he conflicts with the rule, sic utere tuo ut alienum non lædas, that his neighbor has any cause of complaint. If, after the excavation, he builds on his own ground a wall which continues the support of his neighbor's soil and buildings, that neighbor has no action. The excavation, therefore, is not the foundation of the action, but the damage consequential upon the excavation, and no cause of action exists until the damage occurs. In reference to this class of cases, Baron Parke says, in Nicklin v. Williams, 10 Ex. 259: "But, on examining those cases, they do not appear to be for injuries to rights, which this is, but solely for consequential damages, where the original act itself was no wrong, and only became so by reason of those damages, and, therefore, they do not apply." It is true that, in this case, the Court of Exchequer considered the excavation on one's own land, whereby the lateral support of the neighbor's soil and buildings was taken away, a direct invasion of that neighbor's rights, and, therefore, itself the basis of the cause of action,as did also the Queen's Bench in the case just cited of Bonomi v. Backhouse, and in this respect both courts were overruled by the ex-chequerchamber; but the principle enunciated was the same all the way through, and the only difference was in the application. In delivering the opinion of the exchequer chamber, Mr. Justice Willes says: "There is no doubt that, for an injury to a right, an action lies; but the question is, what is the plaintiff's right? Is it that his land should remain in its natural state, unaffected by any act done in the neighboring land, or is it that nothing should be done in the neighboring land from which a jury would find that damage might possibly accrue?" See also the case of Roberts v. Reed, 16 East, 215, in which it appeared that the surveyors of a highway, by excavations in it, took away the support of the plaintiff's wall, and it was held that no action lay until damage resulted to the wall. In Whitehouse v. Fellowes, 100 Eng. C. L., or 10 Common Bench, N. S. 765, the trustees of a turnpike had converted an open ditch, at the side of their road, into a covered drain. In heavy storms this drain was inadequate to the carrying off of the water, and, in consequence, the plaintiff's lands were overflowed, and it was held that the cause of action dated from the damage. There was here no trespass, no invasion upon the plaintiff's lands or his rights, until the overflow and injury. Other cases might be cited; but enough have been, to show the principle which underlies them, viz., that, where the original act itself is no invasion of the plaintiff's rights, then there is no cause of action until such act has caused damage, and it dates from that time.

On the other hand, as we have already stated, where the original act is unlawful and an invasion of the plaintiff's rights, the cause of action dates from that act, and a new cause does not arise from new damage resulting therefrom. The case of Lord Oakley v. The Kensington Canal Co., 5 Barn. & Ad. 138, is, strongly in point. The canal company entered upon plaintiff's land, and dug it away for the purpose of sloping the banks of their canal, in consequence of which the land was overflowed at every high tide. It was held that the injury was complete when the trespass was committed, and no new cause of action arose with every overflow. So in the case of Clegg v. Dearden, 64 Eng. C. L., or 12 Ad. & Ellis, N. S. 575, the defendant made an excavation into the mine of plaintiff, through which water flowed into the mine. It was held that the cause of action was complete at the time the excavation was made. Lord Denman, in giving the opinion of the court, says: "The gist of the action, as stated in the declaration, is the keeping open an unfilled-up aperture and excavation made by the defendant into the plaintiff's mine. By the custom, the defendant was entitled to excavate up to the boundary of his mine without having any barrier, and the cause of action, therefore, is the not filling up the excavation made by him on the plaintiff's side of the boundary, and within their mine. It is not, as in the case of Holmes v. Wilson, 10 A. & E. 508, a continuing of something wrongfully placed by the defendant upon the premises of the plaintiff; nor is it a continuing of something placed upon the land of a third person, to the nuisance of the plaintiff, as in the case of Thompson v. Gibson, 7 M. & W. 456. There is a legal obligation to discontinue a trespass or remove a nuisance; but no such obligation upon a trespasser to replace what he has pulled down or destroyed upon the land of another, though he is liable, in an action of trespass, to compensate in damages for the loss sustained. The defendant, having made an excavation and aperture in the plaintiff's land, was liable to an action of trespass; but no cause of action arises from his omitting to re-enter the plaintiff's land and fill up the excavation. Such an omission is neither a continuation of a trespass, nor of a nuisance; nor is it a breach of any legal duty." Language could not be more apt than this for the case at bar. Counsel here would make the gist of the action the continuance of the ditch, as there the continuance of the excavation; but the fact is, the wrong was done when the ditch was dug, and an omission to re-enter and fill up the ditch was a breach of no legal duty. There are cases in which the original act is considered as a continuing act, and daily giving rise to a new cause of action. Where one creates a nuisance and permits it to remain, so long as it remains, it is treated as a continuing wrong, and giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrong-doer, is that he has a legal right, and is under a legal duty, to terminate the cause of the injury. As to anything upon his own' land, a party has a right to control and remove it, and, if it is so much of an injury to his neighbor's rights as to amount to a nuisance, is under a legal obligation to do so; but as to that upon his neighbor's land, he has no such right, and is under no such duty.

Hence the distinction between nuisance and trespass. As is said by Angell (Water-courses, p.56): "The distinction between nuisance and trespass is, that nuisance is only a consequence or result of what is not directly or immediately injurious; but its effect is injurious, while trespass is a direct and immediate invasion of property." So an eminent English text-writer defines a private nuisance as "anything done to the hurt or annoyance of the lands, tenements and heredita

ments of another, and not amounting to a trespass." 3d Ed. Stephen's Comm. III, p. 39; and Hilliard says (Torts, I, p. 350): "One of the characteristics of nuisance, as distinguished from trespass or conversion, is, that it consists in a use of one's own property, which involves injury to the property or other rights or interests of his neighbor." So if a party, who has created a nuisance upon his own land, parts with that land, he ceases to be responsible for the nuisance except, perhaps, in cases where he continues to receive some benefit therefrom. Hanse v. Cowing, 1 Lansing, 288.

It is true, the books speak of such a thing as a continuing trespass. In 1 Addison on Torts, p. 332, it is said that, "if a man throws a heap of stones, or builds a wall, or plants posts or rails on his neighbor's land, and there leaves them, an action will lie against him for the trespass, and the right to sue will continue from day to day until the incumbrance is removed." And in the case of Holmes v. Wilson, 37 Eng. C. L. 273, or 10 A. & E. 503, it appeared that the trustees of a turnpike, to support it, built buttresses on the plaintiff's land. He brought an action and recovered for the trespass. He then notified them to remove the buttresses. Failing to do so, he sued again, and it was held that the action would lie. It seems to us very doubtful whether this ruling can be sustained upon principle. As suggested by the reporter, suppose plaintiff had recovered, as a part of his damages in the first action, as he properly might, the expense of removing these buttresses, and this fact had appeared in the second suit, could the action have been maintained? And what difference, we ask, does it make, whether he did actually recover for such expense? It was a proper matter of damages; it was a part of the amount necessary to place the land as it was before the trespass. He was entitled to recover it if he proved it; and if he failed to prove it, or if, after proving it, the court refused to allow it, neither the failure nor the error laid the foundation for a second action. And what right does the first trespass give the trespasser to re-enter and commit a second trespass? True, in this case the plaintiff had requested the trustees to remove the buttresses, and that might be considered a license to enter, and a waiver of the trespass. But, where there is no such request, as in the case before us, how is it? If the company had entered to fill up the ditches, could not Mihlman have maintained his action for that as a trespass? Was he not at liberty to appropriate the benefit of the company's work in digging the ditches, and prevent any person from interfering therewith, and recover damages from any one that did interfere? It seems so to us, unquestionably. And it seems that the rule would be the same in case of such a trespass as suggested in Addison, as the building of a wall or the heaping up of a pile of stones. Hence, we doubt the doctrine as stated by him, and as decided in Holmes v. Wilson. At any rate, we do not think it can be extended beyond the character of trespasses there named -that is, those in which something is carried to and placed upon the land. Take this illustration: A trespasses upon B's land, and digs a well. And that is a trespass very like that of digging a ditch. A never enters upon the land again. The well is never filled up, but is permitted to remain. Twenty years thereafter, in a wet season, the water from the well soaks through the soil into a cellar, floods it and causes damage. Is A responsible for the damage, or does the statute bar an action? Was the digging of the well a single act and a completed wrong, or does its existence make A a continuous trespasser, and liable for every recurring damage? But, without pursuing the discussion further, we hold that, in digging the ditches on Mihlman's land, the company was a trespasser; that the cause of action for that wrong was then complete, and

then commenced to run; that the failure to enter and fill up the ditches did not render the company guilty of continuing a nuisance, or make it, in any legal sense, a continuous wrong-doer, and that, therefore, as to any injury resulting therefrom, as shown in the record, the statute of limitations was a bar.

Another question presented is as to the measure of damages. Here the company dug some ditches four or five years before the injuries now complained of. The ditches were all dug in one day, were of no great length, and could have been filled without much expense. Instead of immediately complaining of the trespass, filling up the ditches and recovering his damages therefor, Mihlman permits them to remain for years, and then recovers one thousand dollars for damages just done to his crops. And, if the theory of the learned counsel for defendant in error were correct, he could go on suing, year by year, for every injury his crops received in consequence of these ditches, whereas the expenditure of a few dollars in filling up the ditches would have averted all loss. Will the law tolerate this? We think not. The proposition is sound, that while a wrong-doer should compensate for all the injury naturally and fairly resulting from his wrong, yet the party upon whom the wrong is done should take reasonable care of his property, and make reasonable effort to prevent any extension of the injury. If a party can, with reasonable effort, prevent an injury from spreading, he ought to do it. It is no more than simple justice to the party who has caused the injury, especially if that party has acted without malice, and without a thought of causing injury. In Loker v. Damon, 17 Pick. 284, defendant had wrongfully pulled down a fence in November, which plaintiff did not repair till the following May; cattle got in and eat the grass, for the loss of which he claimed. The court below ruled that plaintiff could only recover enough to remunerate him for replacing the fences. The learned Chief Justice Shaw said: "The direction respecting damages was right. In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor's field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and wilfully and obstinately, or through gross negligence, leaves it open all summer, and cattle get in, it is his own folly. So, if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture or pictures, or other valuable articles sustain damage, or the rain beats in and rots the window, this damage would be too remote. We think the jury were rightly instructed that, as the trespass consisted in removing a few rods of fence, the proper measure of damage was the cost of repairing it, and not the loss of a subsequent year's crop, arising from the want of such fence."

In Chase v. N. Y. Central R. R. Co., 24 Barb. 273, in an action brought to recover damages for injuries done to plaintiff's house and grounds by water, alleged to have been turned on to the plaintiff's land by defendants in constructing a railroad, it was held that the owner of the house, under such circumstances, is bound to use reasonable care, skill and diligence, adapted to the occasion, to save his house from being injured by the water, notwithstanding it came upon his premises by the fault or negligence of the defendants, or suffer the loss himself. In Lawson v. Price, 2 L. & Eq. Rep. 426, the Court of Appeals of Maryland say that, "after

a wrong has been committed, it is the duty of the injured party to make reasonable efforts to prevent its increase." Now, in this case the jury not only heard the testimony, but made a personal examination of the premises, and the question ought to have been submitted to them, whether Mihlman could not, with reasonable effort and small expense, have filled up the ditches, repaired the wrong done by the company, and prevented any destruction of his crops or depreciation of the value of his real estate; and they should have been instructed that, if this were so, the measure of damages would not be the value of the crops destroyed, but the cost of filling the ditches, and placing the land in the condition it was in before the trespass, together with the value of the direct injury done by the trespass.

The questions we have discussed are in the case. It is fair to state, however, that they were not both presented to the attention of the court below, and, as a general rule, where the question is not presented in that, it will not be noticed in this court. We notice a growing disposition on the part of some counsel to regard the trial-courts as simply instrumentalities for the collection of evidence, and upon the evidence so collected to raise questions of law for the first time in this court. Such a practice is unjust to both the trial and this court. Every question that is in a case should be presented to that court, and its ruling had directly thereon. The reasons for this have been often given, and we need not repeat them here. We desire simply to call attention to the matter. One, at least, of the questions we have considered was called to the attention of the district court, and, as for its error in respect to that the judgment had to be reversed, we deemed it right to notice the other.

The judgment will be reversed and the case remanded, with instructions to grant a new trial. All the justices concurring.

Where a railroad and its appurtenances are in the hands of receivers to be preserved and operated, the court having charge thereof possesses the power, after notice to and hearing of the parties interested, to allow the issuing of negotiable certificates of indebtedness, creating a first lien, when this is necessary to raise money for the management and preservation of the property until it shall have been disposed of.

MANNING, J., delivered the opinion of the court: On the day after the appointment of the first receiver, he petitioned the chancelor for leave to borrow $90,000, or such other sum as his honor might prescribe; and the chancelor thereupon, and in vacation, made an order authorizing him to borrow $150,000 on certificates of indebtedness which should have priority of payment over any other claim, out of the proceeds of sales of any property in the receiver's possession. And the authority thus granted not having been used, the two receivers subsequently petitioned the chancelor for leave to borrow, instead, $700,000, to be used in purchasing rolling-stock and putting the railroad and its appurtenances in repair. The chancelor thereupon made an order authorizing them to do so, directing what portion of the amount should be expended in rolling-stock (about $450,000), prescribing, in accordance

with suggestions in the petition, the form of the certificates to be issued therefor, making them negotiable, and interest thereon payable semi-annually at the office of the New York Guaranty and Indemnity Company, and undertaking to charge these certificates upon the railroad and its appurtenances and equipments as a prior lien, having precedence of liens created by the first and other prior mortgages. The receivers were also authorized to sell the certificates at ninety cents on the dollar; and it seems to have been intended that the proceeds should be used, in part, in enlarging and completing the work beyond what was necessary for the preservation of the property.

Counsel for the first and other early mortgage creditors, alarmed by this decree, object to and protest against having their liens on the property of the company, existing by virtue of instruments solemnly executed long before the receivers' certificates were thought of, postponed in favor of charges created by the latter; and they deny that the chancelor has rightfully the power to give such precedence to new creditors. The chancelor has not in his opinion discussed this question, or presented any arguments or authorities in support of the disputed power. But this has been ably done by the counsel for appellees.

A claim of very large authority in the courts has been made in argument under this head; and the subject is a very important one, and sufficiently new to require an investigation at some length.

1. "The object sought by the appointment of a receiver," says Mr. Kerr, in his work on Receivers, "may be generally described to be, to provide for the safety of property, pending the litigation which is to decide the right of litigant parties." (p. 3). The duty of the court, upon a motion for a receiver, is merely to protect the property in the meantime for the benefit of those persons to whom the court at the hearing of the cause, when it will have before it all evidence and materials for a determination, shall think it properly belongs." Id. p. 6. Blakeney v. Dufaur, 15 Beav. 42. In Gardner v. L. G. & D. Railway Co. Law Rep. 2 Ch. App. 201, an appeal was taken to the court of appeal in chancery, from an order of the vice-chancelor appointing the general manager and the secretary of the company, on the application of a creditor with a lien, managers and receivers of the company's "undertaking" or railroad business. The lords justices discharged the order, saying: "When the court appoints a manager of a business or undertaking, it, in effect, assumes the management into its own hands; for the manager is the servant or officer of the court, and upon any question arising as to the character or details of the management, it is the court that must direct and decide. The circumstance that, in this particular case, the persons appointed were previously the managers employed by the company" (as was one of the persons appointed in the case before us), "is immaterial. When appointed by the court, they are responsible to the court, and no orders of the company, or of the directors, can interfere with this responsibility. Now, I apprehend, that nothing is better settled than that this court does not assume the management of a business or undertaking except with a view to the winding up and sale of the business or undertaking. The management is an interim management; its necessity and its justification spring out of the jurisdiction to liquidate and to sell; the business or undertaking is managed and continued in order that it may be sold as a going concern, and with the sale the management ends." p. 212. This is stated by Cairns, Lord Justice, as the rule in such matters. And in addition (pertinently of views hereinafter to be presented), he says: "When parliament, acting for the public interest, authorizes the construction and maintenance of a

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railway, both as a highway for the public and as a road on which the company may themselves become carriers, * it confers powers and imposes duties and responsibilities of the largest and most important kind, upon the company which parliament has before it, and upon no other body of persons. It is impossible to suppose that the court of chancery can make itself, or its officer, without any parliamentary authority, the hand to execute these powers, and all the more impossible when it is obvious there can be no real and correlative responsibility for the consequences of any imperfect management. It is said that the railroad company did not object to a manager. This may well be so. But in the view I take of the case, the order would be improper, even if made on the express agreement and request of the company."

A court of equity in this country may, in certain cases, interpose, and appoint a receiver, when a company, receiving tolls and income more than sufficient to pay the expenses of an economical administration, refuses to apply the surplus to the payment of a judgment or mortgage-creditor. The Covington Drawbridge Company v. Shepherd 21 How. 112, presents an instance of the exercise of this power. The receiver in that case was also directed, out of the tolls and income of the bridge, to keep it in repair. In Stevens et al. v. Davison et al. 18 Grattan 819, a board of directors, some of whom "had been concerned in the fraudulent issue of a very large amount of spurious stock, greatly exceeding in amount the lawful stock of the company," on the very day when their term of office was to expire, and the annual meeting of the stockholders, which the directors failed to call, should have been regularly held, made a lease of the railroad of which they were directors, for a period of ten years, at an inadequate rent, without authority from the charter to do so, and in violation of a by-law adopted by the stockholders. Some of the lawful stockholders filed a bill to have the lease declared void, and for other relief. And a receiver was appointed to take possession and control of the road and operate it under directions contained in the decree. The Court of Appeals of Virginia, reviewing the proceedings, said: "While for the reasons assigned in Gardner v. The London C. and D. Railway Company, 2 Law. Rep. Ch. App. 201, a court of chancery will be reluctant to appoint a receiver to take charge of and manage a railroad, it is competent to do so, when such a course is indispensable to secure the rights of the legitimate stockholders, and to prevent a failure of justice. And the court is of opinion that, under the circumstances of this case, it was proper for the court to appoint a receiver to take charge of and manage the railroad until it can be ascertained, by a proper inquiry to be made in this cause, who are the legitimate stockholders of said company, to whom the custody and management of said railroad should be committed.

The foregoing instances have been selected as illustrative of the authority of courts of equity to take charge of the management of property in litigation. Their interference by receivers and managers in such cases and for such purposes, is easily vindicated. In doing so, they put forth a power merely incidental and subsidiary to their functions of ascertaining and enforcing the rights of the persons concerned in the subject-matter in controversy. They take and preserve the property, in order to uphold and maintain the rights of creditors and others therein, and to enforce the obligation of contracts. It is in the exercise of the judicial function only, that a court obtains jurisdiction between litigant parties, of the cause in which it is authorized to take such control, for the preservation of

the property involved. And we are not aware of any principle of law or element of wise policy which would justify such court, after so getting possession, in laying aside its judicial character, and engaging, however hopeful the scheme, in the completion of unfinished undertakings, and in raising money for this purpose, as the parties themselves could not, by setting up liens which shall displace other and older liens, without the consent of the persons to whom they belong. The objections to such transactions are, that they are necessarily, to some extent, speculative; that they arbitrarily unsettle interests founded on the most solemn contracts, and that the court, in conducting them, abdicates its judicial function, and exercises another more akin to that of a bureau of an executive department of the interior.

We have been furnished, by the industry of counsel for camplainants below, with imperfect manuscript reports of the cases of Southerland, Trustee &c., v. The Lake Superior Ship-Canal Railroad and Iron Company (before Judge Longyear, United States District Judge for the Eastern District of Michigan, presiding in the Circuit Court of Detroit), and Hyde v. The Sodus Point, &c., R. R. Co. (before a Judge of the Supreme Court of New York, at Brooklyn). In each of these cases the court seems to have authorized its receiver to raise money by certificates of indebtedness, which should constitute a first lien on the property, and to complete therewith the company's unfinished work. In what manner, in the former case, the court obtained jurisdiction of the cause, by whom, for what purpose, and how it was brought before the court, we are not informed. It only appears, by a copy of Judge Longyear's order, of June, 1872, that "the receiver, Knox, was appointed * under the first mortgage," and that after notice to the parties, and counsel for them had been heard, "it being made to appear to the court that it is for the best interest of all concerned in said ship-canal and said property, real and personal, that said canal should be finished and made ready for use as speedily as practicable, and that it is necessary and expedient that said receiver should issue certificates of indebtedness for the purpose of said speedy construction; " therefore he was authorized by the court to issue such certificates, payable July 1st, 1873, and bearing interest at the rate of ten per cent. a year, to the amount of $500,000, which should constitute a first lien on said canal and property, and have priority of payment over any debt previously created, and to execute and deliver a mortgage-trust-deed thereof and of the franchises and rights of the company to a trustee, to secure payment of said certificates accordingly. It was further provided that, in case these should not be paid at maturity, the receiver should, upon application to the court and on its order, deliver over all the property and effects embraced by said deed, to the trustee, to be by him sold to pay said certificates. The receiver was also authorized to sell said certificates, at a discount not exceeding twenty-five per cent., or to borrow money by hypothecation of them. The court, by this conveyance to a trustee, put the property even out of its own control, and appears to have disposed of it, as if invested itself with a sort of seigneurial title that enabled it to supersede existing rights of others therein and to have exercised legislative power in authorizing the borrowing of money without regard to usury laws.

The only other information which our manuscript of this case contains, is that, the first series of these certificates of indebtedness not having been paid, the trustees under the receiver's mortgage-trust-deed, applied to the court, in 1874, for leave to sell, to enable him to pay them; that a contest was thereupon inaugurated with other parties interested, and that the judge de